Category: Company

Pierce and Others v Wood and Others: ChD 19 Nov 2009

The Court was asked whether an enhanced scrip dividend received by the trustees of a discretionary lifetime settlement properly falls to be treated as a capital or as an income receipt as a matter of trusts law as well as for tax purposes.

Judges:

Hodge QC HHJ

Citations:

[2009] EWHC 3225 (Ch), [2010] WTLR 253

Links:

Bailii

Jurisdiction:

England and Wales

Company, Trusts

Updated: 04 October 2022; Ref: scu.416203

in Re Kenyon Swansea Ltd: ChD 1987

Vinelott J said: ‘There is . . one matter that has given me considerable concern. At a meeting of the board of directors of the company . . it was resolved to instruct solicitors to act on behalf of the company. In reliance on that resolution solicitors retained by the company have incurred considerable expense in filing evidence and instructing counsel to oppose this application. I can see no possible justification for this course. The directors no doubt have very strong feelings as to the person they would like to see in control of the company and able to appoint and remove its directors including themselves. But they are not entitled at the expense of the company to take part in a dispute as to whether Mr Kenyon’s shares should be compulsorily acquired by Mr Mitchell or by the company.’

Judges:

Vinelott J

Citations:

[1987] BCLC 514

Jurisdiction:

England and Wales

Cited by:

Cited – Kohli v Lit and Others ChD 13-Nov-2009
The claimant asserted that the other shareholders had acted in a manner unfairly prejudicial to her within the company.
Held: The claimant was allowed to bring in without prejudice correspondence to contradict evidence by the defendant which . .
Lists of cited by and citing cases may be incomplete.

Company

Updated: 04 October 2022; Ref: scu.378394

In re a Company: ChD 1985

While a section 75 petition proceeded it is of great importance to preserve the status quo, to hold the ring, to ensure that the assets remained undiluted, undiverted and properly administered; so that, if the court came to the conclusion, as it frequently does, or if the parties reached a sensible decision that one should buy out the other as a matter of compromise, the assets would be capable of specific valuation in much the same state as they had been before the breakdown had taken place. Harman J said: ‘in cases of litigation under section 75 it is most desirable that the position of the company be not altered or disturbed more than is absolutely essential, between the presentation and the hearing of the petition’.

Judges:

Harman J

Citations:

[1985] BCLC 80, [1986] 2 BCC ChD 99

Statutes:

Companies Act 1980 75

Jurisdiction:

England and Wales

Cited by:

Cited – Kohli v Lit and Others ChD 13-Nov-2009
The claimant asserted that the other shareholders had acted in a manner unfairly prejudicial to her within the company.
Held: The claimant was allowed to bring in without prejudice correspondence to contradict evidence by the defendant which . .
Lists of cited by and citing cases may be incomplete.

Company

Updated: 04 October 2022; Ref: scu.378389

Cox v Cox and Skan Dansk Design Limited: ChD 27 Apr 2006

Mrs Cox sought to declarations as to the effect of arrangements made on her divorce in an attempt to avoid contentious proceedings. The couple held equal shares in the family business, but the company registers were missing or had never existed. The husband claimed that the arrangements were provisional pending valuations of the assets. The wife asked whether the arrangements were unlawful assistance to the husband to purchase shares in the company.
Held: Despite the absence of formal registers, the parties acted as and therefore were directors of the company under s741(1). Applying the principles set out in Pagnan, the arrangements as set out were too uncertain to be binding. At best it came to heads of agreement. It was open to the company in general meeting to release the directors from liability for breaches of s151.

Judges:

John Powell QC J

Citations:

[2006] EWHC 1077 (Ch)

Links:

Bailii

Statutes:

Companies Act 1985 151 741(1), Law of Property (Miscellaneous Provisions) Act 1989 2

Jurisdiction:

England and Wales

Citing:

Cited – Pagnan SpA v Feed Products Ltd ChD 1987
An agreement can be enforceable as an agreement on main terms only, with the detailed terms to be agreed later. Bingham J said: ‘The Court’s task is to review what the parties said and did and from that material to infer whether the parties’ . .
Cited – Pagnan SpA v Feed Products Ltd CA 2-Jan-1987
Contractually Bound – but Further Terms to Agree
The parties had gone ahead with performance of the arrangement between them, but without a formal agreement being in place.
Held: Parties may intend to be bound forthwith even though there are further terms still to be agreed. If they then . .
Cited – Xydhias v Xydhias CA 21-Dec-1998
The principles of contract law are of little use when looking at the course of negotiations in divorce ancillary proceedings. In the case of a dispute the court must use its own discretion to determine whether agreement had been reached. Thorpe LJ . .
Cited – Brady v Brady HL 1988
An employment agreement contravening section 151 of the 1985 Act is unenforceable. The obvious mischief to which section 151 is directed is the case of a bidder financing his bid from the funds of the company acquired. The larger purpose had to be . .
Cited – Baker v Anthony Potter and Bellevue Garages Limited ChD 22-Jun-2004
A company in general meeting can release or compromise a claim for breach of section 151. . .
Cited – Bowthorpe Holdings Limited, Yasaiwa Securities Limited v Hills and others ChD 8-Nov-2002
. .
Lists of cited by and citing cases may be incomplete.

Family, Company

Updated: 04 October 2022; Ref: scu.241784

In re The Salvage Association: ChD 9 May 2003

The company wished to enter into a voluntary arrangement to protect itself from insolvency, but was an association incorporated by Royal Charter.
Held: For the purposes of the Act, the association was to be treated as having a legal persona capable of being wound up. The words ‘opening’ insolvency proceedings could be read widely enough to include a creditors meeting under a proposed voluntary arrangement. Although the regulations did explicitly not apply to English companies it would be perverse to exclude the jurisdiction.

Judges:

Blackurn J

Citations:

Times 21-May-2003, Gazette 19-Jun-2003, [2003] EWHC 1028 (Ch), [2004] 1 WLR 174

Links:

Bailii

Statutes:

Insolvency Act 1985 8(7), Council Regulation (EC) 1346/2000 on insolvency proceedings

Jurisdiction:

England and Wales

Citing:

Cited – Brac Rent-A-Car International Inc ChD 7-Feb-2003
The company was incorporated in Delaware. Its main centre of business was within the UK. The company resisted an attempt to wind the company up here.
Held: The English courts had jurisdiction. The company’s contracts were subject to English . .
Lists of cited by and citing cases may be incomplete.

Company, Insolvency

Updated: 04 October 2022; Ref: scu.182424

Iesini and Others v Westrip Holdings Ltd and Others: ChD 16 Oct 2009

The claimants were shareholders in Westrip, accusing the Defendant directors of deliberately engaging in a course of conduct which has led to Westrip losing ownership and control of a very valuable mining licence and which, but for their intervention, would have led to Westrip losing all or almost all of its remaining assets. They say that the course of conduct that they allege amounts to breaches of duty by the individual defendants.
Held: Section 263 (2) (a) will apply only where the court is satisfied that no director acting in accordance with section 172 would seek to continue the claim. If some directors would, and others would not, seek to continue the claim the case is one for the application of section 263 (3) (b).
Where the claimant brings a derivative claim for the benefit of the company, he will not be disqualified from doing so if there are other benefits which he will derive from the claim. However, in relation to the rescission claim a person may be prevented from bringing a derivative claim if he participated in the wrong of which he complains.

Judges:

Lewison J

Citations:

[2009] EWHC 2526 (Ch), [2011] 1 BCLC 498, [2010] BCC 420

Links:

Bailii

Statutes:

Companies Act 2006 261

Jurisdiction:

England and Wales

Citing:

Cited – Foss v Harbottle 25-Mar-1843
Company alone may sue for legal wrong against it.
A bill was lodged by two of the proprietors of shares in a company incorporated by Act of Parliament, on their own and the other shareholders’ behalf. They claimed against three bankrupt directors, a proprietor, solicitor and architect charging them . .
Cited – Wallersteiner v Moir (No 2) CA 1975
The court was asked whether Moir would be entitled to legal aid to bring a derivative action on behalf of a company against its majority shareholder.
Held: A minority shareholder bringing a derivative action on behalf of a company could obtain . .
Cited – Prudential Assurance Co Ltd v Newman Industries Ltd (No 2) CA 1982
A plaintiff shareholder cannot recover damages merely because the company in which he has an interest has suffered damage. He cannot recover a sum equal to the diminution in the market value of his shares, or equal to the likely diminution in . .
Cited – In Re Little Olympian Eachways Ltd ChD 29-Jul-1994
A Jersey company (Supreme) had brought a petition under the section against the company. An application was made for security for costs against Supreme. It could only be made if Supreme was resident outside the UK. Supreme argued that, despite being . .
Cited – Lowe v Fahey 1996
Where there has been material misconduct, even in the shape of a single act, the primary remedy is under section 459, not by a shareholder’s derivative action. . .
Cited – Airey v Cordell and Others ChD 24-Aug-2006
Application by the claimant for permission to amend his Particulars of Claim to plead a new claim.
Held: Warren J pointed out that there are many cases in which some directors, acting in accordance with section 172, would think it worthwhile . .
Cited – Fanmailuk.Com Ltd and Another v Cooper and others ChD 11-Jun-2008
Claim for a declaration that the entire share capital was held on trust for the claimant.
Held: Engelhart QC said: ‘on an application under section 261 it would be ‘quite wrong . . to embark on anything like a mini-trial of the action’ . .
Cited – Franbar Holdings Ltd v Patel and others ChD 2-Jul-2008
Action alleging breach of shareholders’ agreement.
Held: Directors may have genuine and proper differences of opinion as to the correctness of making a section 172 claim. . .
Cited – Nurcombe v Nurcombe CA 1985
The court discussed a minority shareholder’s action to enforce the company’s claim as a derivative claim. Browne-Wilkinson LJ said that such an action, where a courts in equity permitted a person interested to bring an action to enforce the . .
Cited – Barrett v Duckett CA 15-Aug-1994
A shareholder is to show the court justification for derivative action in company name.
Peter Gibson LJ said: ‘The shareholder will be allowed to sue on behalf of the company if he is bringing the action bona fide for the benefit of the . .
Cited – Godden v Merthyr Tydfil Housing Association CA 15-Jan-1997
The Plaintiff was a building contractor; the Defendant a housing association engaged in developing suitable sites for residential accommodation for letting to tenants. Before the contract the parties had successfully completed what was been called . .
Cited – Shah v Shah CA 10-Apr-2001
The court was asked as to the enforceability of a document under the terms of which the defendants were to make a payment of pounds 1.5 million to the claimant. The document was described as a deed and provided for each defendant to sign in the . .
Cited – Konamaneni v Rolls Royce Industrial Power (India) Limited ChD 20-Dec-2001
The claimants founded their action on the assertion that the defendants had been corrupt in obtaining contracts in India. The defendants argued that the English courts had no jurisdiction. The claimants held various small shareholdings in a company . .
Cited – Central Estates (Belgravia) Ltd v Woolgar CA 1972
A lessee made a claim to acquire the freehold of his house under the 1967 Act. The making of such a claim prevented the landlord from forfeiting the lease unless lessee had not made his claim in good faith.
Lord Denning MR said: ‘To my mind, . .
Cited – Goldsmith v Sperrings Ltd CA 1977
Claims for Collateral Purpose treated as abuse
The plaintiff commenced proceedings for damages for libel and an injunction against the publishers, the editors and the main distributors of Private Eye. In addition, he issued writs against a large number of other wholesale and retail distributors . .
Cited – Smith v Croft (No 3) ChD 1987
Knox J said: ‘Ultimately the question which has to be answered in order to determine whether the rule in Foss v. Harbottle applies to prevent a minority shareholder seeking relief as plaintiff for the benefit of the company is, ‘Is the plaintiff . .
Cited – Jaybird Group Ltd v Greenwood 1986
An indemnity as to costs in a derivative claim is not limited to impecunious claimants. The justification for the indemnity is that the claimant brings his claim for the benefit of the company. Once the court has reached the conclusion that the . .
Cited – Smith v Croft ChD 1986
Walton J was concerned with two appeals from the Master. The first appeal was from an order made ex parte ordering the company to indemnify the claimant against costs. The appeal against that order was allowed, and Walton J decided that there was so . .

Cited by:

Cited – Dawson-Damer and Others v Taylor Wessing Llp and Others ChD 6-Aug-2015
The clamants sought orders under the 1998 Act for disclosure of documents about them by the defendant solicitors and others. The defendants said that the request would require the consideration of a very large number of documents, considering in . .
Lists of cited by and citing cases may be incomplete.

Estoppel, Company, Torts – Other

Updated: 04 October 2022; Ref: scu.377212

Manley v Sartori: ChD 1927

The death of a partner caused the dissolution of the partnership. The survivors continued the partnership business on their own account. The question arose as to the entitlement of the personal representatives of the deceased partner to a share of the profits earned between the death of the partner and the winding up.
Held: Romer J said: ‘Where . . the surviving partners, instead of realizing the assets and distributing the proceeds amongst the partners in accordance with their rights and interests, choose to carry on the business and make profits by virtue of the employment of any of the partnership assets, then, subject no doubt to making a proper allowance to the surviving partners for their trouble in so carrying on the business, such profits belong to all the persons interested in the partnership assets by means of which the profits have been earned in accordance with their rights and interests in those assets; that is to say, proportionately to their interests in those assets. That has been laid down in numerous cases and is affirmed by s. 42 of the Partnership Act of 1890 . . [The] profits . . were not divisible between the parties in accordance with their rights and interests in profits earned while the partnership was a going concern . . . Now the rights of the deceased partner or his legal person representatives are rights over all the assets of the partnership. He has an unascertained interest in every single asset of the partnership, and it is not right to regard him as being merely entitled to a particular sum of cash ascertained from the balance-sheet of the partnership as drawn up at the date of his death . . . [as] was pointed out by Wigram V-C in Willett v. Blanford, it does not necessarily follow that because the surviving partners have been carrying on the business the profits or the whole of the profits are attributable to the use of the partnership assets . . . it may well be that in a particular case profits have been earned by the surviving partner, not by reason of the use of any asset of the partnership, but purely and solely by reason of the exercise of skill and diligence by the surviving partner; or it may appear that the profits have been wholly or partly earned not by reason of the use of the assets of the partnership, but by reason of the fact that the surviving partner himself provided further assets and further capital by means of which the profit has been earned. Those profits, so far as earned by sources outside the partnership assets, are not profits in which the executors of the deceased partner could be entitled to any share . . . Where surviving partners continue to carry on the business, prima facie they are carrying it on by reason of their possession of the assets of the partnership; and the executors of the deceased partner are prima facie entitled to a share of the profits proportionate to his share in the assets of the partnership. It is for the surviving partners to show, if they can, that the profits have been earned wholly or partly by means other than the utilization of the partnership assets . . ..’

Judges:

Romer J

Citations:

[1927] 1 Ch 157

Statutes:

Partnership Act 1890 42(1)

Jurisdiction:

England and Wales

Cited by:

Applied – Popat v Shonchatra CA 25-Jun-1997
Partnership assets, both as to capital and revenue were to be divided equally between the partners in the absence of an agreement otherwise even though they had made an unequal contribution. . .
Cited – Hardip Singh Gill v Kulbir Singh Sandhu ChD 26-Jan-2005
The partnership had been dissolved. It had involved conversion of a property to be run as a nursing home. The claimant was to manage the home, and the profits would be used first to pay him a salary, and then to be divided equally. When wound up . .
Lists of cited by and citing cases may be incomplete.

Company

Updated: 04 October 2022; Ref: scu.222921

Ashborder Bv and others v Green Gas Power Ltd and others: ChD 29 Jun 2004

Judges:

Etherton, The Honourable Mr Justice Etherton

Citations:

[2004] EWHC 1517 (Ch), [2005] 1 BCLC 623

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Driver v Broad 1893
An agreement to create a floating charge counted as an interest in land. Kay LJ said that there was no distinction between a debenture which expressly gives the company liberty to dispose of the charged property ‘in the ordinary course of its . .

Cited by:

Cited – Sandhu (T/A Isher Fashions UK) v Jet Star Retail Ltd and Others CA 19-Apr-2011
The claimant had supplied clothing to the defendant under a contract containing a retention of title clause. The defendant fell into financial difficulties and administration. The claimant now sought damages for conversion of its goods by the . .
Lists of cited by and citing cases may be incomplete.

Company, Contract

Updated: 04 October 2022; Ref: scu.198482

Bowthorpe Holdings Limited, Yasaiwa Securities Limited v Hills and others: ChD 8 Nov 2002

Judges:

Sir Andrew Morritt The Vice Chancellor

Citations:

[2002] EWHC 2331 (Ch), [2003] 1 BCLC 226

Links:

Bailii

Statutes:

Companies Act 1985 151

Jurisdiction:

England and Wales

Cited by:

Cited – Cox v Cox and Skan Dansk Design Limited ChD 27-Apr-2006
Mrs Cox sought to declarations as to the effect of arrangements made on her divorce in an attempt to avoid contentious proceedings. The couple held equal shares in the family business, but the company registers were missing or had never existed. The . .
Lists of cited by and citing cases may be incomplete.

Company

Updated: 04 October 2022; Ref: scu.178203

Popat v Shonchatra: CA 25 Jun 1997

Partnership assets, both as to capital and revenue were to be divided equally between the partners in the absence of an agreement otherwise even though they had made an unequal contribution.

Judges:

Nourse LJ

Citations:

Times 04-Jul-1997, Gazette 09-Jul-1997, [1997] EWCA Civ 1966, [1997] 1 WLR 1367

Links:

Bailii

Statutes:

Partnership Act 1890 24

Jurisdiction:

England and Wales

Citing:

Applied – Manley v Sartori ChD 1927
The death of a partner caused the dissolution of the partnership. The survivors continued the partnership business on their own account. The question arose as to the entitlement of the personal representatives of the deceased partner to a share of . .

Cited by:

Cited – Emerson (Executrix of James Henry Emerson) v Estate of Thomas Matthew Emerson CA 5-Feb-2004
Two brothers farmed in partnership. The partnership was dissolved in 1998 on the death of one brother, but the business continued. The farm was affected by the foot and mouth outbreak in 2001, and the second brother died shortly after. Compensation . .
Cited – Hardip Singh Gill v Kulbir Singh Sandhu ChD 26-Jan-2005
The partnership had been dissolved. It had involved conversion of a property to be run as a nursing home. The claimant was to manage the home, and the profits would be used first to pay him a salary, and then to be divided equally. When wound up . .
Lists of cited by and citing cases may be incomplete.

Company

Updated: 04 October 2022; Ref: scu.142362

Commission v Italy (Rec 1989,P 4035) (Sv89-269 Fi89-269) (Judgment): ECJ 5 Dec 1989

ECJ 1. The principle of equal treatment, of which Articles 52 and 59 of the Treaty embody specific instances, prohibits not only overt discrimination by reason of nationality but also all covert forms of discrimination which, by the application of other criteria of differentiation, lead in fact to the same result.
2. The exception to freedom of establishment and freedom to provide services provided for by the first paragraph of Article 55 and by Article 66 of the EEC Treaty must be restricted to those of the activities referred to in Articles 52 and 59 which in themselves involve a direct and specific connection with the exercise of official authority. That is not the case in respect of activities concerning the design, programming and operation of data-processing systems for the public authorities, since they are of a technical nature and thus unrelated to the exercise of official authority.
3. A Member State which provides that only companies in which all or a majority of the shares are either directly or indirectly in public or State ownership may conclude agreements for the development of data-processing systems for the public authorities thereby fails to fulfil its obligations under Articles 52 and 59 of the Treaty and Directive 77/62 coordinating procedures for the award of public supply contracts .

Citations:

C-3/88, [1989] EUECJ C-3/88

Links:

Bailii

Jurisdiction:

European

European, Company

Updated: 04 October 2022; Ref: scu.134784

Veronsaajien oikeudenvalvontayksikko v A Oy: ECJ 19 Jul 2012

ECJ Direct taxation – Freedom of establishment – Free movement of capital – EEA Agreement – Articles 31 and 40 – Directive 2009/133/EC – Scope – Exchange of shares between a company established in a Member State and a company established in a third State party to the EEA Agreement – Refusal of a tax advantage – Agreement on mutual administrative assistance in the field of taxation

Judges:

Lenaerts, P

Citations:

C-48/11, [2012] EUECJ C-48/11

Links:

Bailii

Statutes:

Directive 2009/133/EC 31 40

Jurisdiction:

European

Taxes – Other, Company

Updated: 04 October 2022; Ref: scu.463223

Tiffin v Lester Aldridge Llp: CA 1 Feb 2012

The claimant had been a partner with the respondent firm. He appealed against the rejection of his claim for unfair dsmissal on the basis that he had not been an employee.
Held: The appeal failed. Had this been an unlimited partnership under the 1890 Act, she would have been a partner, which was inconsistent with employee status. So she could not pursue her claim.
Rimer LJ discussed the impossibility of a partner being an employee under the 2000 and 1890 Acts: ‘The drafting of section 4(4) raises problems. Whilst I suspect that the average conscientious self-employed professional or business person commonly regards himself as his hardest master, such perception is inaccurate as a matter of legal principle. That is because in law an individual cannot be an employee of himself. Nor can a partner in a partnership be an employee of the partnership, because it is equally not possible for an individual to be an employee of himself and his co-partners (see Cowell v. Quilter Goodison Co Ltd and Q.G. Management Services Ltd [1989] IRLR 392). Unfortunately, the authors of section 4(4) were apparently unaware of this. The subsection is directed to ascertaining whether a particular member (call him A) of an LLP is or is not for any purpose an employee of it. The statutory hypothesis which the subsection requires in order to answer that question is that A and the other members of the LLP ‘were partners in a partnership’. That hypothesis, if it is to be read and applied literally, must in every case produce the same answer, namely that A cannot be an employee of the LLP for any purpose. If that had been Parliament’s intention when enacting section 4(4), it might just as well have ended the subsection immediately before the word ‘unless’. That, however, was plainly not its intention. The subsequent words must be contemplating a practical inquiry that, in particular factual circumstances, will yield a yes or no answer to the question whether a particular member of an LLP is an employee of it. The subsection must, therefore, be interpreted in a way that avoids the absurdity inherent in a literal application of its chosen language so that it can be applied in a practical manner that will achieve the result that I consider it obviously intended. The presumption is that Parliament does not intend to enact legislation whose application results in absurdities, and section 4(4) must therefore be interpreted with that in mind.
In my judgment the way section 4(4) is intended to work is as follows. Subject to the qualification which I mention below, it requires an assumption that the business of the LLP has been carried on in partnership by two or more of its members as partners; and, upon that assumption, an inquiry as to whether or not the person whose status is in question would have been one of such partners. If the answer to that inquiry is that he would have been a partner, then he could not have been an employee and so he will not be, nor have been, an employee of the LLP. If the answer is that he would not have been a partner, there must then be a further inquiry as to whether his relationship with the notional partnership would have been that of an employee. If it would have been, then he will be, or would have been, an employee of the LLP. I consider that it is implicit that the primary source material for the purpose of answering these questions will be the members’ agreement although this will not necessarily represent the totality of what may be looked at. The inquiry thus requires a consideration of the circumstances in which a person may become a partner in a partnership under the Partnership Act 1890 . .’

Judges:

Sir Nicholas Wall P, Rimer, Jackson LJJ

Citations:

[2012] ICR 647, [2012] 2 All ER 1113, [2012] EWCA Civ 35, [2012] IRLR 391, [2012] 1 WLR 1887, [2012] WLR(D) 19

Links:

Bailii

Statutes:

Partnership Act 1890, Limited Liability Partnerships Act 2000 4(4)

Jurisdiction:

England and Wales

Citing:

Cited – Stekel v Ellice ChD 1973
The question of whether persons are in partnership is a question of substance and not form: the label which the parties choose to give to their relationship is not determinative.
Megarry J considered the status of a salaried partner: ‘Certain . .
Appeal from – Tiffin v Lester Aldridge Llp EAT 16-Nov-2010
EAT CONTRACT OF EMPLOYMENT – Whether established
The Claimant, who is a solicitor, became a salaried partner in a partnership, which became a Limited Liability Partnership, which was the Respondent. The . .
Cited – Kovats v TFO Management Llp and Another EAT 21-Apr-2009
EAT JURISDICTIONAL POINTS: Worker, employee or neither
Can a partner in a limited liability partnership be an employee? The EAT decided that on the facts of the case the Appellant was a partner in a limited . .

Cited by:

Cited – Clyde and Co Llp and Another v Bates van Winkelhof CA 26-Sep-2012
The claimant was a solicitor partner with the appellant limited liability partnership at their offices in Tanzania. She disclosed what she believed to be money laundering by a local partner. She was dismissed. She had just disclosed her pregnancy . .
Lists of cited by and citing cases may be incomplete.

Employment, Company

Updated: 04 October 2022; Ref: scu.450534

Gillespie v Gillespie and Others: SCS 30 Nov 2011

Outer House, Court of Session – supplementary opinion

Judges:

Lord Hodge

Citations:

[2011] ScotCS CSOH – 201

Links:

Bailii

Jurisdiction:

Scotland

Cited by:

See Also – Gillespie v Gillespie and Others (No 1) SCS 18-Nov-2011
. .
See Also – Gillespie v Gillespie and Others (No 2) SCS 18-Nov-2011
. .
See Also – Gillespie v Gillespie and Others (No 3) SCS 18-Nov-2011
. .
See Also – Gillespie v Gillespie and Others (No 4) SCS 18-Nov-2011
. .
Lists of cited by and citing cases may be incomplete.

Scotland, Company, Land

Updated: 04 October 2022; Ref: scu.450123

Chalabi and Others v Agha-Jaffar and Another: CA 13 Dec 2011

The court was asked to construe contracts for the back to back sales of shares in a company.

Judges:

Longmore, Black LJJ, Sir David Keene

Citations:

[2011] EWCA Civ 1535

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Appeal From – Chalabi and Others v Jaffar and Another ComC 11-Feb-2011
. .
Lists of cited by and citing cases may be incomplete.

Company

Updated: 01 October 2022; Ref: scu.449982

Re Rodenstock Gmbh (The ‘Scheme Company’): ChD 6 May 2011

Application was made for approval of a scheme of arrangement for the company. The court considered its jurisdiction when the company was incorporated in Germany and had its main centre of operations there.

Judges:

Briggs J

Citations:

[2011] EWHC 1104 (Ch), [2011] ILPr 34, [2012] BCC 459, [2011] Bus LR 1245

Links:

Bailii

Statutes:

Companies Act 2006

Jurisdiction:

England and Wales

Company

Updated: 01 October 2022; Ref: scu.434890

In the Matter of the Supporting Link; In the Matter of the Insolvency Act 1986: ChD 19 Mar 2004

The Secretary of State sought the winding up of the company. Directors offered undertakings as to their future behaviour.
Held: The Court should be slow to accept such undertakings unless the Secretary consented. The company was solvent, but the basic trading model was not attractive, and allegations of fraud had been made. No great sum had gone to charity. These were the very directors whose behaviour had suggested the need for the action, and undertakings could properly be rejected.

Judges:

Vice-Chancellor, The Vice-Chancellor

Citations:

[2004] EWHC 523 (Ch), Times 19-Mar-2004, Gazette 01-Apr-2004, [2004] 1 WLR 1549

Links:

Bailii

Statutes:

Insolvency Act 1986, Companies Act 1985 447, Charitable Institutions (Fund-Raising) Regulations 1994 7

Jurisdiction:

England and Wales

Citing:

Applied – Re Bamford Publishers Ltd ChD 2-Jun-1977
The Secretary of State sought the winding up of a company. The court considered the discretion to accept undertakings as to the company’s future conduct: ‘Quite clearly the Company has been engaged in a disreputable system of trading. The Company . .
Cited – Re Easy-Dial Ltd 16-Sep-2003
On an application for a winding up order, the court accepted undertakings on the basis of which the Secretary of State sought and was given leave to withdraw his petition. . .
Cited – Re Walter L Jacob Ltd CA 1989
Having authorised an enquiry under section 447, the Secretary of State presented a winding-up petition of the respondent, an authorised dealer in securities. The company had been obliged to cease trade by its regulatory body. The judge held that the . .
Cited – Re Vehicle Options Ltd 21-Feb-2002
The court accepted undertakings with regard to the conduct of a franchised vehicle-leasing broker. The Secretary of State consented to the order. . .
Cited – In Re Senator Hanseatische Verwaltungsgesellschaft Mbh and Another CA 30-Jul-1996
The Secretary of State had presented a winding up petition on public interest grounds against a company carrying on an illegal lottery.
Held: The court refused the application of the Secretary of State for the appointment of a provisional . .
Cited – In the Matter of Blackspur Group Plc; Secretary of State for Trade and Industry v Davies; Thomas; Thompson; Andrew CA 19-Nov-1997
The Secretary of State may perfectly properly refuse to accept offered undertakings and instead decide to prosecute company directors under the Act, even though though the terms offered were intended to give equivalent effect. The purpose of the . .

Cited by:

Cited – Bell Davies Trading Ltd and Another v Secretary of State for Trade and Industry CA 30-Jul-2004
The directors of the company had organised a scheme for imports from China which was thought to be an unlawful abuse of the import licensing scheme. When presneted with an application by the Secretary of State for the winding up of the company, the . .
Lists of cited by and citing cases may be incomplete.

Company, Insolvency

Updated: 01 October 2022; Ref: scu.194656

The Secretary of State for Trade and Industry v Goldberg, Mcavoy: ChD 26 Nov 2003

The Secretary of State sought a disqualification order. The director argued that one shoul not be made in the absence of some breach of legal duty, some dishonesty should be shown.
Held: The answer was a mixture of fact and law. A breach of duty alone was neither necessary nor sufficient. Unfitness by reason of incompetence might alone be enough. Though honesty was essential in a director, proof of dishonesty was not necessary where a breach of duty had not been shown. A standard nevertheless had to be used, even within a broad brush approach. A court must be very careful before making an order where the conduct complained of was not dishonest, and involved no breach of duty. However in this case, the standard had been met.

Judges:

The Honourable Mr Justice Lewison

Citations:

[2003] EWHC 2843 (Ch), Times 02-Dec-2003

Links:

Bailii

Statutes:

Company Directors Disqualification Act 1986 1A

Jurisdiction:

England and Wales

Citing:

Cited – Re Bath Glass Ltd CA 1988
A requirement that the court must have regard ‘in particular’ to the matters listed in a schedule means that the court is not confined to looking at those matters: ‘To reach a finding of unfitness the court must be satisfied that the director has . .
Cited – Secretary of State for Trade and Industry v Christopher Paul Reynard CA 18-Apr-2002
A company director was examined in court, in the course of company director disqualification proceedings. The judge was so concerned by his behaviour as a witness, as to extend the period of disqualification. He had appealed, and the Secretary of . .
Cited – In re Sevenoaks Stationers (Retail) Ltd CA 1990
The court gave guidelines for the periods of disqualification to be applied for company directors under the Act. The maximum period of ten years should be reserved for only the most serious of cases. Periods of two to five years should apply to . .
Cited – Lagunas Nitrate Co v Lagunas Syndicate CA 1899
The standard of behaviour expected of a company director was described: ‘As directors, I am not aware that there is any difference between their legal and their equitable duties. If directors act within their powers, if they act with such care as is . .
Cited – Re D’Jan of London Ltd; Copp v D’Jan ChD 1-Sep-1993
Directors liability to compensate on insolvency for own negligence. ‘In my view, the duty of care owed by a director at common law is accurately stated in s 214(4) of the Insolvency Act 1986. It is the conduct of – ‘a reasonably diligent person . .
Cited – In re Grayan Building Services Ltd CA 1995
The degree to which an appellate court will be willing to substitute its own judgment for that of the tribunal will vary with the nature of the question. Hoffmann LJ said: ‘The concept of limited liability and the sophistication of our corporate law . .
Cited – In Re Living Images Ltd ChD 7-Aug-1995
Director must have intended fraudulent preference for creditor to be disqualified. Trading whilst insolvent amounts to trading with creditors’ money. . .
Cited – Secretary of State for Trade and Industry v McTighe (No 2) CA 1996
The court accepted that it was misconduct for a director to pursue: ‘the policy of not paying the debts of creditors who are not pressing when it is known that the company has insufficient reserves enabling it to trade except at the risk of such . .
Cited – Winkworth v Edward Baron Development Co Ltd HL 1986
A company director has duties to the company’s creditors as well as the shareholders. ‘Equity is not a computer. Equity operates on conscience . .’ . .
Cited – West Mercia Safetywear Ltd v Dodds CA 1988
If a company continues to trade whilst insolvent but in the expectation that it would return to profitability, it should be regarded as trading not for the benefit of the shareholders, but for the creditors also. If there is a possibility of . .
Cited – Secretary of State for Trade and Industry v McTighe (No 2) CA 1996
The court accepted that it was misconduct for a director to pursue: ‘the policy of not paying the debts of creditors who are not pressing when it is known that the company has insufficient reserves enabling it to trade except at the risk of such . .
Cited – Secretary of State for Trade and Industry v Gash 1997
The court considered the possible propriety of a company continuing to trade whilst insolvent: ‘The companies legislation does not impose on directors a statutory duty to ensure that their company does not trade while insolvent; nor does that . .
Cited – Secretary of State for Trade and Industry v Creegan and others CA 27-Nov-2001
‘It is well established on the authorities that causing a company to trade, first, while it is insolvent and, secondly, without a reasonable prospect of meeting creditors’ claims is likely to constitute incompetence of sufficient seriousness to . .
Cited – Secretary of State for Trade and Industry v Griffiths; Conway and Wassell; In Re Westmid Packing Services Ltd CA 16-Dec-1997
Guidance given on what evidence should be admitted to affect the length of disqualification and conditions of Director’s disqualification.
A director’s duty to exercise his powers in the best interests of the company and to recognise the . .
Cited – Facia Footwear Ltd v Hinchliffe 1998
A director owes duties to the company’s creditors. . .
Cited – In Re Barings Plc, Secretary of State for Trade and Industry v Baker (No 5) ChD 25-Nov-1998
A person disqualified from acting as a company director might exceptionally be given permission to act as non-executive director in named companies where this appeared necessary and the cause of the original disqualification was unrelated.
As . .
Cited – In re Barings plc (No 5) CA 2000
A finding of breach of duty is neither necessary nor of itself sufficient for a finding of unfitness. As the judge (at first instance) observed a person may be unfit even though no breach of duty is proved against him or may remain fit . .
Cited – Re Pantone 485 Ltd ChD 2002
It is not a breach of duty if directors of an insolvent company act consistently with the interest of the creditors generally, but inconsistently with the interests of a particular creditor or section of creditors. . .
Cited – Secretary of State for Trade and Industry v Arif and Others ChD 25-Mar-1996
The length of a director’s disqualification is not to be discounted for the time elapsed up to the hearing of the case. As to section 221 of the Companies Act, it : ‘has, at the least, two purposes. First, to ensure that those who are concerned in . .
Cited – Mothew (T/a Stapley and Co) v Bristol and West Building Society CA 24-Jul-1996
The solicitor, acting in a land purchase transaction for his lay client and the plaintiff, had unwittingly misled the claimant by telling the claimant that the purchasers were providing the balance of the purchase price themselves without recourse . .
Cited – Secretary of State for Trade and Industry v Ivens and Another ChD 24-Sep-1997
Evidence of activities of director in non-insolvent but associated company admissible in disqualification proceedings. . .
Cited – Secretary of State for Trade and Industry v Ettinger 1993
The court discussed the standards required of company directors. ‘Those who take advantage of limited liability must conduct their companies with due regard to the ordinary standards of commercial morality. They must also be punctilious in observing . .
Cited – Secretary of State for Trade and Industry v Ivens and Another ChD 24-Sep-1997
Evidence of activities of director in non-insolvent but associated company admissible in disqualification proceedings. . .
Cited – In Re Dawson Print Group Ltd 1987
Proof of dishonesty in a company director is not a strict requirement before a disqualification can be ordered. Hoffmann J said: ‘There must, I think, be something about the case, some conduct which if not dishonest is at any rate in breach of . .
Cited – Paragon Finance Plc (Formerly Known As National Home Loans Corporation Plc v D B Thakerar and Co (a Firm); Ranga and Co (a Firm) and Sterling Financial Services Limited CA 21-Jul-1998
Where an action had been begun on basis of allegations of negligence and breach of trust, new allegations of fraud where quite separate new causes of claim, and went beyond amendments and were disallowed outside the relevant limitation period. . .
Lists of cited by and citing cases may be incomplete.

Company, Insolvency

Updated: 01 October 2022; Ref: scu.188253

The Secretary of State for Trade and Industry v Bell Davies Trading Ltd and KTA Limited: ChD 16 Jan 2004

Judges:

The Hon Mr Justice Richards

Citations:

[2004] EWHC 20 (Ch)

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

Appeal from – Bell Davies Trading Ltd and Another v Secretary of State for Trade and Industry CA 30-Jul-2004
The directors of the company had organised a scheme for imports from China which was thought to be an unlawful abuse of the import licensing scheme. When presneted with an application by the Secretary of State for the winding up of the company, the . .
Lists of cited by and citing cases may be incomplete.

Company, European, Commercial

Updated: 01 October 2022; Ref: scu.192050

Igroup Ltd v Ocwen (an unlimited company) and Others: ChD 23 Oct 2003

The claimant had submitted debentures and forms to the registrar of companies for registration. The documents submitted contained more information than was necessary, and the extra information was commercially sensitive. It sought rectification of the forms submitted or to amend the registers to exclude the additional information.
Held: The court had no power to make such an alteration. The power was limited to correcting errors of commission or ommission. This was neither. The Exeter Trust case displaced any possibility of applying an inherent jurisdiction.

Judges:

Lightman J

Citations:

Times 04-Nov-2003, [2003] EWHC 2431 (Ch), [2004] 1 WLR 451

Links:

Bailii

Statutes:

Companies Act 1985 403 404

Jurisdiction:

England and Wales

Citing:

Applied – Exeter Trust Ltd v Screenways Ltd CA 14-May-1991
The existence of the limited staturtory jurisdiction to order rectification under section 404 displaced and was inconsistent with the continuation of any common law power to order rectification. . .
Cited – In re Calmex Ltd 1989
The court could exercise a supervisory jurisdiction over the registrar of companies, and enforce his duties through judicial review. The jurisdiction was not general, but one exercising normal public law jurisdiction. In particular, the court has . .
Lists of cited by and citing cases may be incomplete.

Company

Updated: 01 October 2022; Ref: scu.188706

Fantask and others v Industriministeriet: ECJ 2 Dec 1997

ECJ Directive 69/335/EEC – Registration charges on companies – Procedural time-limits under national law.

Citations:

C-188/95, [1997] EUECJ C-188/95, [1997] ECR-1 6783

Links:

Bailii

Statutes:

Directive 69/335/EEC

Jurisdiction:

European

Cited by:

Cited – Walker-Fox v Secretary of State for Work and Pensions CA 29-Nov-2005
The claimant pensioner had moved to France. He sought to claim a retrospective winter fuel allowance claim. The government had eventually agreed to make payments to UK residents abroad.
Held: The claimant was deemed to have had knowledge of . .
Cited – Littlewoods Ltd and Others v Commissioners for Her Majesty’s Revenue and Customs SC 1-Nov-2017
The appellants had overpaid under a mistake of law very substantial sums in VAT over several years. The excess had been repaid, but with simple interest and not compound interest, which the now claimed (together with other taxpayers amounting to 17 . .
Lists of cited by and citing cases may be incomplete.

Company, Limitation

Updated: 01 October 2022; Ref: scu.161611

Wendy Fair (Heritage) Ltd v Hobday and Another: ChD 27 Mar 2006

Application for contribution from directors after they had traded beyond the time when any prospect of avoiding insolvent liquidation was lost.

Judges:

The Honourable Mr Justice Peter Smith

Citations:

[2006] EWHC 5803 (Ch)

Links:

Bailii

Statutes:

Insolvency Act 1986 214

Jurisdiction:

England and Wales

Insolvency, Company

Updated: 29 September 2022; Ref: scu.241457

Secretary of State for Trade and Industry v Paulin: ChD 13 May 2005

The director sought to appeal an order disqualifying him form acting as a company director.
Held: The disqualification proceedings were properly charactised as insolvency proceedings and therefore there was no requirement for permission to appeal to a high court judge.

Judges:

Morritt

Citations:

[2005] EWHC 888 (Ch), Times 26-May-2005

Links:

Bailii

Statutes:

Company Directors Disqualification Act 1986 6 21(2)

Jurisdiction:

England and Wales

Citing:

Cited – Mulholland v Mitchell HL 1971
The House was asked whether to re-open an assessment of damages where there had been a very marked change in the injured person’s situation shortly after the trial. There was no suggestion of fraud. The Court of Appeal had decided to admit the fresh . .
Cited – Robinson v Fernsby, Scott-Kilvert CA 19-Dec-2003
The judge had drafted his judgment and sent the drafts to the parties for comment. He then received additional written representations from one party, from which he realised that he had made an error, and issued a corrected judgment which a . .
Cited – Hanley v Stage and Catwalk Ltd (T/A Acorn Studios) and others CA 7-Nov-2001
. .
Cited – Maria Dolores Townsend and Beverley Ann King v George Nicolas Achilleas CA 6-Jul-2000
. .
Cited – Ladd v Marshall CA 29-Nov-1954
Conditions for new evidence on appeal
At the trial, the wife of the appellant’s opponent said she had forgotten certain events. After the trial she began divorce proceedings, and informed the appellant that she now remembered. He sought either to appeal admitting fresh evidence, or for . .
Cited – Hamilton v Al Fayed (2) CA 13-Oct-2000
A third party who financially supported a court action had no right to be joined as a party even at hearings at which decisions would be made which might affect his potential liabilities. Those who financially support proceedings must acknowledge . .
Cited – Re Probe Data Systems Ltd (No.3) CA 1992
An appeal from a director disqualification is to be under the Insolvency Rules. . .
Cited – Hertfordshire Investments Ltd v Bubb and Another CA 25-Jul-2000
When considering an application for a re-hearing of a County Court action in order to consider and admit new evidence, the county court and High Court practice is now the same and the judge should consider the list of questions in Ladd v Marshall, . .
Cited – Charlesworth v Relay Roads Ltd ChD 31-Aug-1999
It remains possible to amend pleadings after judgment but before the order is drawn up, provided the party involved complies with the appropriate procedures. This may apply even though it would require the presentation of further evidence and . .
Cited – Irtelli v Squatriti and Others CA 15-Apr-1992
Fresh evidence may be accepted in appeals against committal for contempt. . .
Cited – In re Sevenoaks Stationers (Retail) Ltd CA 1990
The court gave guidelines for the periods of disqualification to be applied for company directors under the Act. The maximum period of ten years should be reserved for only the most serious of cases. Periods of two to five years should apply to . .
Cited – In re Grayan Building Services Ltd CA 1995
The degree to which an appellate court will be willing to substitute its own judgment for that of the tribunal will vary with the nature of the question. Hoffmann LJ said: ‘The concept of limited liability and the sophistication of our corporate law . .
Lists of cited by and citing cases may be incomplete.

Company, Insolvency

Updated: 29 September 2022; Ref: scu.225273

Lord v Sinai Securities Ltd and others: ChD 21 Jul 2004

For it to be found that a person had acted as a shadow director within the section, it must be shown that ‘all the directors, or at least a consistent majority of them,’ had been accustomed to act on the directions of the alleged shadow director.

Judges:

Hart J

Citations:

[2004] EWHC 1764 (Ch)

Links:

Bailii

Statutes:

Companies Act 1985 741(2)

Jurisdiction:

England and Wales

Cited by:

Cited – Ultraframe (UK) Ltd v Fielding and others ChD 27-Jul-2005
The parties had engaged in a bitter 95 day trial in which allegations of forgery, theft, false accounting, blackmail and arson. A company owning patents and other rights had become insolvent, and the real concern was the destination and ownership of . .
Lists of cited by and citing cases may be incomplete.

Company, Insolvency

Updated: 29 September 2022; Ref: scu.226172

Baker v Anthony Potter and Bellevue Garages Limited: ChD 22 Jun 2004

A company in general meeting can release or compromise a claim for breach of section 151.

Judges:

Mr Justice Richards

Citations:

[2004] EWHC 1422 (Ch)

Links:

Bailii

Statutes:

Companies Act 1985 459

Jurisdiction:

England and Wales

Cited by:

Cited – Cox v Cox and Skan Dansk Design Limited ChD 27-Apr-2006
Mrs Cox sought to declarations as to the effect of arrangements made on her divorce in an attempt to avoid contentious proceedings. The couple held equal shares in the family business, but the company registers were missing or had never existed. The . .
Lists of cited by and citing cases may be incomplete.

Company

Updated: 29 September 2022; Ref: scu.198307

The Secretary of State for Trade and Industry v Swan and Othes: ChD 22 Jul 2003

When commencing proceedings under the Act, the papers were defective. The secretary of state had failed to give appropriate notice, and thus prevented him from making representations as to the allegations. The allegations involved the manipulation of cheques to create artificial balances.
Held: In this case the Secretary of State’s papers contained irrelevant matters and had failed to present the issues in a balanced way. One day’s notice, rather than ten were given, and no explanation was provided. There was a procedural unfairness. However such unfairness could be dealt with without the proceedings being struck out, and the application was refused.

Judges:

The Honourable Mr Justice Laddie

Citations:

[2003] EWHC 1780 (Ch), Times 18-Aug-2003

Links:

Bailii

Statutes:

Company Directors Disqualification Act 1986 6

Jurisdiction:

England and Wales

Citing:

Cited – In re Sevenoaks Stationers (Retail) Ltd CA 1990
The court gave guidelines for the periods of disqualification to be applied for company directors under the Act. The maximum period of ten years should be reserved for only the most serious of cases. Periods of two to five years should apply to . .
Cited – In re Lo-Line Electric Motors Ltd 1988
When considering the filing of additional evidence changing allegations made under the 1986 Act, the paramount requirement is that the director facing disqualification must know the charge he has to meet. As to the standard of misbehaviour required . .
Cited – Re Circle Holidays International plc ChD 1994
The affidavit filed in proceedings under the Act take a role similar to that of the pleadings in other cases. . .
Cited – In Re Rex Williams Leisure Plc (In Administration) CA 4-May-1994
On an application for a disqualification order, the director against whom the order is to be made should file an affidavit before the date of the hearing. A disqualification order can have grave consequences and is a serious interference with the . .
Cited – Palamisto General Enterprises SA v Ocean Marine Insurance Limited CA 1972
‘Where a party asserts his opponent’s complicity in . . criminal misconduct, the case is pre-eminently one in which not only the RSC (Ord. 18 r.12(1) and Ord. 72 r. 7(2)) but also fair treatment require that, so far as practicable, the matter . .
Cited – John Zink and Co Limited v Wilkinson CA 1973
Where a party alleged breach of confidence, the pleadings should be sufficiently particular to allow a defendant to know the particular allegations he faced. . .
Cited – Re Moonlight Foods Ltd , Secretary of State for Trade and Industry v Hickling 1996
The Secretary of State, when presenting an application for the disqualification of a company director is obliged to present a balanced picture. ‘It is accepted that these are not ordinary adversarial proceedings but have an element of public . .
Cited – Re Sutton Glassworks Ltd ChD 1996
Referring to the procedure in disqualification proceedings of serving an affidavit, the court held: ‘That procedure, and, in particular, the mandatory requirement in r 6, emphasises the importance to the respondent of being able to ascertain with . .
Cited – Re Pinemoor Ltd ChD 1997
Chadwick J said: ‘It would be preferable, for the future, if those preparing and swearing affidavits in support of applications under this Act were careful to distinguish between facts which they are able to establish by direct evidence, the . .
Cited – In Re Continental Assurance Co of London Plc ChD 2-Jul-1996
Gross incompetence as director in not reading the company accounts founded disqualification. The jurisdiction of company director disqualification should not be hedged about with rigid rules which would allow directors to navigate around . .
Cited – Re Jaymar Management Ltd ChD 1990
The 10 day notice period before commencing proceedings had to be calculated exclusive of the day on which the notice was given and the day on which the proceedings were issued. . .
Cited – Re Cedac Ltd CA 1991
The Secretary of State’s notice of intention to bring disqualification proceedings was served and the proceedings begun 10 days later just inside the 2 year limitation period specified by s 7(2) of the Act. Both parties believed the 10 day notice . .
Cited – Re Cubelock Ltd ChD 2001
The procedures for disqualifying directors should not become hedged about with particular rules allowing directors to escape disqualification on small and technical points. . .
Lists of cited by and citing cases may be incomplete.

Company

Updated: 29 September 2022; Ref: scu.184878

Robinson v Reeve: ChD 14 Jun 2002

The parties were brother and sister, owning and renting properties. The issue was whether they were in partnership, and to what extent properties in one name were held in trust for the two.
Held: A partnership was not to be inferred solely from joint ownership, but from all the circumstances. An intention to create a partnership as such is not necessary, but rather an intention to act in a way which in fact is a partnership at law is enough. Here enough circumstances existed to create a partnership in respect of many but not all the properties at issue..

Judges:

The Honourable Mr Justice Field

Citations:

[2002] EWHC 1179 (Ch)

Links:

Bailii

Statutes:

Partnership Act 1890 1

Jurisdiction:

England and Wales

Citing:

Cited – Davis v Davis 1894
Conversion of partnership property. The correct approach is not to conclude that there is a partnership simply because one of the presumptions arises on the facts and is not rebutted by something else; instead, all the facts must be considered, not . .
Cited – Waterer v Waterer 1873
. .
Lists of cited by and citing cases may be incomplete.

Company

Updated: 29 September 2022; Ref: scu.173938

In re Agrimarche Ltd: ChD 5 Jul 2010

One of the branches of the business conducted by the company before its insolvency was the making of options for agricultural commodities. The liquidator asked the court for guidance on their valuations.

Judges:

Lewison J

Citations:

[2010] EWHC 1655 (Ch), [2010] BCC 775

Links:

Bailii

Jurisdiction:

England and Wales

Insolvency, Company

Updated: 27 September 2022; Ref: scu.420221

In re Highfield Commodities Ltd: ChD 1985

The court’s discretion in appointing provisional liquidators is unfettered provided it is exercised in a ‘proper judicial manner’. Sir Robert Megarry V-C said: ‘I would respectfully express my complete agreement with the view taken by [the judge]. I do not think that the old authorities, properly read, had the effect of laying down any rule that the power to appoint a provisional liquidator is to be restricted in the way for which Mr Burke-Gaffney contends. No doubt a provisional liquidator can properly be appointed if the company is obviously insolvent or the assets are in jeopardy; but I do not think that the cases show that in no other case can a provisional liquidator be appointed over a company’s objection . . Section238 . . is in quite general terms. I can see no hint in it that it is to be restricted to certain categories of cases. The section confers on the court a discretionary power, and that power must obviously be exercised in a proper judicial manner. The exercise of that power may have serious consequences for the company, and so a need for the exercise of the power must overtop those consequences’ . . but in the case of a public interest petition, ‘the public interest must be given full weight’.
The general practice is for an undertaking as to damages to be given upon an ex parte application for provisional liquidators, but such an undertaking would not be required on an inter partes application. A cross-undertaking as to damages might not be required where ‘The Secretary of State was seeking to enforce the law, or was acting selflessly in the performance of a public duty directly or impliedly imposed by statute . .’

Judges:

Sir Robert Megarry V-C

Citations:

[1985] 1 WLR 149, [1984] BCLC 623

Statutes:

Companies Act 1985

Jurisdiction:

England and Wales

Citing:

Cited – Dobson v Hastings 1992
The Rules of the Supreme Court indicate that save when permitted under the rules, documents on the court file are not intended to be inspected or copied. There is no common law right to obtain access to a document filed in proceedings and held as . .

Cited by:

Cited – Perinpanathan, Regina (on The Application of) v City of Westminster Magistrates Court and Another CA 4-Feb-2010
The appellant’s daughter had been stopped entering the country with andpound;150,000 in cash. The police sought an order for its forfeiture, suspecting a link with terrorism. The magistrates found no evidence of such, and declined to make the order, . .
Applied – Securities and Investments Board v Lloyd-Wright and Another ChD 23-Jun-1993
The SIB sought injunctions pursuant to the 1986 Act, three to prevent continued breaches of the law and fourth, an asset freezing order. It was argued that although it might be right to dispense with a cross-undertaking in damages in relation to the . .
Cited – The Financial Services Authority v Sinaloa Gold Plc and Others SC 27-Feb-2013
The FSA sought injunctions to restrain the activities of the first defendants, including asset freezing orders under section 380 of the 2000 Act. The defendant’s bankers objected that they would be prejudiced by the restrictions without the FSA . .
Cited – Revenue and Customs v Rochdale Drinks Distributors Ltd CA 13-Oct-2011
The revenue appealed against refusal of its petition for the winding up of the company for non-payment of a VAT assessment. The company said that the assessment was disputed. The revenue said that the company had been run for the purpose of . .
Lists of cited by and citing cases may be incomplete.

Company, Insolvency

Updated: 27 September 2022; Ref: scu.401969

Bottin (International) Investments Ltd v Venson Group Plc and others: CA 22 Oct 2004

Citations:

[2004] EWCA Civ 1368

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Thomas Witter v TBP Industries Ltd ChD 15-Jul-1994
An award of damages for misrepresentation required that there had at some time been a right of rescission, not necessarily a continuing right to rescind.
An acknowledgement of non-reliance clause has become a common part of modern commercial . .
Lists of cited by and citing cases may be incomplete.

Company

Updated: 25 September 2022; Ref: scu.218709

D and J Nicol v Dundee Harbour Trustees: HL 10 Dec 1914

Whether a corporation created by a statute has a particular power depends exclusively on whether that power has been expressly given to it by the statute regulating it, or can be implied from the language used.
Lord Dunedin declared: ‘By the law of Scotland a litigant, and in particular a pursuer, must always qualify title and interest. Though the phrase ‘title to sue’ has been a heading under which cases have been collected from at least the time of Morison’s Dictionary and Brown’s Synopsis, I am not aware that anyone of authority has risked a definition of what constitutes title to sue. I am not disposed to do so, but I think that it may fairly be said that for a person to have such title he must be a party (using the word in its widest sense) to some legal relation which gives him some right which the person against whom he raises the action either infringes or denies.’

Judges:

Lord Dunedin

Citations:

1915 SC (HL) 7, [1915] AC 550, (1914) 2 SLT 418, [1914] UKHL 4

Links:

Bailii

Jurisdiction:

Scotland

Cited by:

Cited – AXA General Insurance Ltd and Others v Lord Advocate and Others SC 12-Oct-2011
Standing to Claim under A1P1 ECHR
The appellants had written employers’ liability insurance policies. They appealed against rejection of their challenge to the 2009 Act which provided that asymptomatic pleural plaques, pleural thickening and asbestosis should constitute actionable . .
Lists of cited by and citing cases may be incomplete.

Company

Updated: 25 September 2022; Ref: scu.447658

It’s A Wrap (UK) Ltd v Gula and Another: ChD 16 Sep 2005

The defendant company directors were accused of having paid dividends to themselves when the company was in fact making a loss.
Held: A claim might lie, but the pleadings did not phrase it adequately, and an amendment would be improper. Though payments had been made at a time when the company ws making losses, a liability to repay arose only where there was knowledge or reasonable cause for the directors to believe that the Act was being contravened as opposed to knowledge of the facts which would give rise to a contravention. The claim failed.

Judges:

Nicholas Davidson QC

Citations:

Times 12-Oct-2005, [2005] EWHC 2015 (Ch)

Links:

Bailii

Statutes:

Companies Act 1985 263(1) 277

Jurisdiction:

England and Wales

Citing:

Cited – Thorne v Silverleaf CA 1994
Peter Gibson LJ said: ‘In s.217(1)(b) knowledge that it is a crime is required.’ . .
Cited – Precision Dippings Ltd v Precision Dippings Marketing Ltd 1986
The claimant had paid a dividend to its parent company. The claimant’s case was that the payment was in contravention of sections 39 and 43 of the Companies Act 1980, as there were no available profits at the time, and so were ultra vires the . .
Cited – Bairstow and Others v Queens Moat Houses plc CA 17-May-2001
The court considered the liability of directors for an unlawfully paid dividend.
Held: Robert Walker LJ: ‘The prospect of the former directors being able to obtain contribution from innocent recipients of unlawful dividends was debated . .

Cited by:

Appeal from – It’s A Wrap (UK) Ltd v Gula and Another CA 11-May-2006
The company was said to have paid dividends unlawfully, in that the directors who were the shareholders had paid themselves dividends knowing that the company had not earned enough to pay them.
Held: Where shareholders had knowledge of the . .
Lists of cited by and citing cases may be incomplete.

Company, Insolvency

Updated: 22 September 2022; Ref: scu.230394

Byers and Others v Samba Financial Group (60): ChD 15 Jan 2021

Judges:

The Hon Mr Justice Fancourt

Citations:

[2021] EWHC 60 (Ch)

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

See Also – Byers and Others v Samba Financial Group (230) ChD 15-Jan-2021
Reasons for grant of leave to appeal . .
See Also – Byers and Others v Samba Financial Group ChD 20-Dec-2019
Application by the defendant issued for an extension of the date by which the defendant was required to give standard disclosure. . .
See Also – Byers and Others v Samba Financial Group ChD 8-Apr-2020
. .
See Also – Byers and Others v Samba Financial Group ChD 24-Apr-2020
. .
See Also – Byers and Others v Samba Financial Group ChD 2-Oct-2020
. .
Lists of cited by and citing cases may be incomplete.

Company, Trusts

Updated: 22 September 2022; Ref: scu.657497

SSL International Plc and Another v TTK Lig Ltd and Others: CA 19 Oct 2011

The parties had contracted for the manufacture and supply of condoms. They now disputed the consequences of the breakdown of their relationship.

Judges:

Mummery, Arden, Stanley Burnton LJJ

Citations:

[2011] EWCA Civ 1170, [2012] 1 All ER (Comm) 429, [2012] 1 WLR 1842, [2012] 1 Lloyd’s Rep 107, [2012] Bus LR 858

Links:

Bailii

Jurisdiction:

England and Wales

Company, Contract

Updated: 22 September 2022; Ref: scu.446003

Bloom and Others v The Pensions Regulator and Others; In re Nortel GMBH (in administration: CA 14 Oct 2011

‘These appeals raise important and difficult questions posed by the impact of legislation for the protection of pension funds upon companies which are undergoing an insolvency process.’

Judges:

Laws, Lloyd, Rimer LJJ

Citations:

[2011] EWCA Civ 1124, [2012] BCC 83, [2012] 1 BCLC 248, [2012] BCLC 248, [2012] 1 All ER 1455, [2012] Bus LR 818, [2011] Pens LR 397

Links:

Bailii

Statutes:

Insolvency Rules 1986, Pensions Act 2004 43, Insolvency Act 1986

Jurisdiction:

England and Wales

Citing:

Appeal from – Bloom and Others v The Pensions Regulator (Nortel, Re) ChD 10-Dec-2010
Applications for directions by the administrators of twenty companies in two groups, all raising the same common questions as to the effect of the Financial Support Direction regime created by the Pensions Act 2004 upon companies in administration . .

Cited by:

Appeal from – In re Nortel Companies and Others SC 24-Jul-2013
The court was asked as to the interrelationship of the statutory schemes relating to the protection of employees’ pensions and to corporate insolvency.
Held: Liabilities which arose from financial support directions or contribution notices . .
Lists of cited by and citing cases may be incomplete.

Company, Insolvency

Updated: 20 September 2022; Ref: scu.445631

Revenue and Customs v Rochdale Drinks Distributors Ltd: CA 13 Oct 2011

The revenue appealed against refusal of its petition for the winding up of the company for non-payment of a VAT assessment. The company said that the assessment was disputed. The revenue said that the company had been run for the purpose of submitting false VAT Input tax claims, and suppressing Output tax invoices.
Held: The appeal succeeded. ‘A well-settled rule of practice . . is that a debt that is wholly disputed on substantial grounds cannot ordinarily found the basis for the making of a winding up order. A petition based on a debt shown to be the subject of such a substantial dispute will ordinarily be dismissed . . It is not sufficient for the company merely to raise a cloud of objections. It has, in the old-fashioned phrase, to condescend to particulars by properly explaining the basis of the claimed dispute and showing that it is a substantial one. If, despite the company’s protestations, the alleged dispute can be seen on the papers to be no dispute at all, or to be no dispute as to part of the debt, the petition will ordinarily be allowed to proceed. If, however, the dispute is shown to be one whose resolution will require the sort of investigation that is normally within the province of a conventional trial, the settled practice is for the petition to be struck out or dismissed so that the parties can contest their differences before whichever other forum may be appropriate.’
‘ the real question before the judge on the ‘missing traders’ issue was whether RDD had shown by its evidence that, upon the hearing of the petition, it was likely to be able to show that in relation to all the alleged trades it claimed to have carried out it had a good arguable case that they were genuine. The judge did not, however, as I read his judgment, approach the case from that angle. In my view he should have done. Had he so approached it, I consider that he could only have concluded that RDD had not discharged that burden. ‘
Lewison LJ agreed but also considered the propriety of the actions of the Revenue in seeking the appointment of a provisional liquidator without notice of the application being first given to the company’s directors, saying: ‘the mere fact that a winding up order is likely to be made on a creditor’s petition is not enough on its own to justify the appointment of a provisional liquidator. Something more is needed. Although the phrase ‘dissipation of assets’ has crept into this branch of the law it is important not to fall into the trap of equating the criteria for the appointment of a provisional liquidator with the criteria for the grant of a freezing order. For one thing, a freezing order will not (at least in theory) prevent transactions that take place in the ordinary course of business, whereas if a provisional liquidator is appointed the business will usually grind to an instant halt. For another, the need to preserve books and records may be an important factor in deciding whether or not to appoint a provisional liquidator. This may be so where there is clear evidence of fraud; or even (as in this case) where there is almost irrefutable evidence of chaos.’

Judges:

Rimer, Pill, Lewison LJJ

Citations:

[2011] STI 2776, [2011] EWCA Civ 1116, [2011] BPIR 1604, [2012] STC 186

Links:

Bailii

Statutes:

Insolvency Act 1986 122 124

Jurisdiction:

England and Wales

Citing:

Cited – American Cyanamid Co v Ethicon Ltd HL 5-Feb-1975
Interim Injunctions in Patents Cases
The plaintiffs brought proceedings for infringement of their patent. The proceedings were defended. The plaintiffs obtained an interim injunction to prevent the defendants infringing their patent, but they now appealed its discharge by the Court of . .
Cited – Re Union Accident Insurance Co Ltd ChD 1972
A provisional liquidator cannot be appointed on a baseless petition. There are two conditions to be met. The first was that the petition must disclose a prima facie case, the second was that there were circumstances that require that a provisional . .
Cited – In re Highfield Commodities Ltd ChD 1985
The court’s discretion in appointing provisional liquidators is unfettered provided it is exercised in a ‘proper judicial manner’. Sir Robert Megarry V-C said: ‘I would respectfully express my complete agreement with the view taken by [the judge]. I . .
Cited – Re a company (No 003102 of 1991), ex parte Nyckeln Finance Co Ltd ChD 1991
. .
Cited – Seawind Tankers Corporation v Bayoil SA CA 12-Oct-1998
Although a company admitted a debt, it was nevertheless right to set aside a petition for winding up under that debt, where the company had an unquantified but greater counterclaim within the same proceedings, even if that claim could not presently . .
Cited – Stocznia Gdanska Sa v Latreefers Inc ComC 21-Dec-1998
In some cases the appointment of a provisional liquidator of an insolvent company may be justified because of his ability to investigate possible claims against directors for fraudulent or wrongful trading. . .
Cited – National Commercial Bank Jamaica Ltd v Olint Corp Ltd (Jamaica) PC 28-Apr-2009
Jamaica – The customer appealed against refusal of an order requiring its bank not to close the customer accounts after the customer had been accused of fraud. There was no evidence that the account was being used unlawfully.
Held: In the . .

Cited by:

Cited – Revenue and Customs v SED Essex Ltd ChD 14-Jun-2013
Liquidator confirmed despite VAT challege
The Revenue sought the winding up of the company for non-payment of substantial arrears of VAT. The revenue had declined to allow VAT input claims. The company said that the petition was wrong since the debt was genuinely disputed.
Held: The . .
Lists of cited by and citing cases may be incomplete.

Insolvency, Company

Updated: 20 September 2022; Ref: scu.445450

Roder UK Ltd v West and Another: CA 12 Oct 2011

The claimant sought to allege that the defendant company director was personally liable after misrepresentations as to the company’s creditworthiness in ordering goods when the defendant was really insolvent.
Held: The defendant’s appeal failed. The facts did not fall within the scope of section 6: ‘There was no purpose or intention on the part of the appellants, when they made the relevant representations, that Titan should obtain money. Still less was there a purpose or intent that Titan should obtain goods, since the relevant goods had been obtained many months before.’

Judges:

Longmore, Hallett, Black LJJ

Citations:

[2011] EWCA Civ 1126, [2012] QB 752, [2012] 3 WLR 469, [2012] 1 All ER (Comm) 659, [2012] 1 All ER 1305, [2011] NPC 101

Links:

Bailii

Statutes:

Statute of Frauds Act 1677 4, Statute of Frauds (Amendment) Act 1828 6

Jurisdiction:

England and Wales

Citing:

Cited – Pasley v Freeman 1789
Tort of Deceit Set Out
The court considered the tort of deceit. A representation by one person that another person was creditworthy was actionable if made fraudulently. A false affirmation made by the defendant with intent to defraud the plaintiff, whereby the plaintiff . .
Cited – Lyde v Barnard CExC 1836
The question before the court was whether a misrepresentation, that a particular fund in which Lord Edward Thynne had a life interest was charged with only three annuities, was a representation relating to Lord Edward’s credit or ability within the . .
Lists of cited by and citing cases may be incomplete.

Torts – Other, Company

Updated: 20 September 2022; Ref: scu.445404

Pathirana v Pathirana: PC 28 Jun 1966

A partnership between the parties had held a contract for the exclusive supply of a foreign company’s goods in Ceylon. One of the partners cancelled the partnership’s contract and took a new contract in his name alone. This contract was said to be personal to that partner.
Held: The Privy Council advised that this new contract was to be treated as partnership property, since it arose out of the substantial goodwill which the partnership had generated.
After termination, one partner carries on the partnership business using the capital of the other, that partner is liable to account to the partnership.

Judges:

Guest, Pearce, Upjohn, Pearson LL, Sir Frederic Sellers

Citations:

[1967] 1 AC 233, [1966] 3 WLR 666, [1966] UKPC 14

Links:

Bailii

Commonwealth, Company, Trusts

Updated: 20 September 2022; Ref: scu.445099

National Grid Indus v Inspecteur van de Rijnmond Belastingdienst / kantoor Rotterdam: ECJ 8 Sep 2011

ECJ Opinion – Freedom of establishment – Companies – Exit taxation for companies that move their headquarters to another Member State – Establishment and taxation of hidden reserves – unrealized foreign exchange gains

Judges:

Julianne Kokott AG

Citations:

C-371/10, [2011] EUECJ C-371/10

Links:

Bailii

Cited by:

Opinion – National Grid Indus v Inspecteur van de Rijnmond Belastingdienst / kantoor Rotterdam ECJ 29-Nov-2011
ECJ Grand Chamber – Transfer of a company’s place of effective management to a Member State other than that in which it is incorporated – Freedom of establishment – Article 49 TFEU – Taxation of unrealised . .
Lists of cited by and citing cases may be incomplete.

European, Company, Capital Gains Tax

Updated: 19 September 2022; Ref: scu.444129